"In Such Manner as the Legislature Thereof May Direct":
The Outcome in Bush v Gore DefendedRichard A. Epstein†

For most American citizens, interest in the presidential election campaign
of 2000 ended when the Supreme Court in Bush v Gore [1] refused to allow any further
recount of the Florida votes. After a short flurry of heated debate over the
soundness of the decision, the nation buckled down to business as usual. The
attention of the media was, to say the least, short-lived. No longer did reporters
seek out law professors to dissect past legal maneuvers and to predict future
ones. Political attention quickly turned to John Ashcroft, Linda Chavez, and
Gale Norton—all controversial Bush nominees for key cabinet positions. The public
seems not to be composed of legal purists. It expected something ugly, and in
a succession of divided opinions from the Florida and United States Supreme
Courts, it got it. But resilience is the mark of a nation that quickly shrugged
off one bruising legal and political struggle only to begin a second, and a
third, and . . . .

Constitutional law professors form a different breed, with longer memories
and deeper resentments. Although the short-term issue of who counts as President
has been resolved, letters and articles have voiced with varying degrees of
indignation a common theme that the legitimacy of the Court has been effectively
called into question by its political coup d’état.
[2] The Court’s decision in Bush v Gore has been regarded
in many quarters as a travesty of constitutional law incapable of rational defense.
Recently, for example, 280 law professors have signed a public letter attacking
a conservative and mean-spirited Court for its devious and hypocritical judicial
activism. [3] It is difficult to assess
the potential influence of these harsh condemnations and dire predictions on
public opinion and the political process. But, as the battles over the Bork
and Thomas nominations show, old wounds are easily reopened in confirmation
hearings of Presidential Supreme Court nominees.

In this case, I think that overheated rhetoric has led to overstated charges.
It is for this reason that I shall mount a qualified rearguard defense of the
outcome in Bush v Gore. I shall not do so on the equal protection grounds
that carried the day with the five conservative justices who voted to end the
recount. Quite simply, I regard that argument as a confused nonstarter at best,
which deserves much of the scorn that has been heaped upon it. The same harsh
judgment, however, cannot be made of the alternative ground for decision that
was championed by Chief Justice Rehnquist in a concurring opinion joined only
by Justices Scalia and Thomas, which would have overturned the decision of the
Florida Supreme Court on the ground that its rulings ran afoul of Article II,
Section 1, clause 2 of the U.S. Constitution, which provides that “Each State
shall appoint, in such Manner as the Legislature thereof may direct,” the electors
for the office of President and Vice President. Unlike the equal protection
phase of the case, any evaluation of this claim requires us to analyze the decision
of the United States Supreme Court in relation to the two decisions of the Florida
Supreme Court in the post-election period.
[4] Part I discusses the equal protection arguments. Part
II is devoted to the less conspicuous but more potent Article II argument.

I. The Equal Protection Claim

Any equal protection challenge to the Florida recount procedure quickly runs
into insurmountable difficulties. The initial foray of the U.S. Supreme Court’s
per curiam opinion was to note the start-and-stop quality of the recount procedures
throughout the state. [5] There were wide variation
in standards across counties that used the paper ballots with their now infamous
chads. There were also wide variations in standards over time within a single
county: Palm Beach, for example, had several different standards on the counting
of chads, which veered from narrow to broad and back again. [6] There were also allegations
that the Democrats (and doubtless the Republicans) placed pressure on the canvassing
boards in Broward, Palm Beach, and Miami-Dade Counties to expand the definition
of what votes could be counted.
[7] None of the variations and switches that took place in
time could be easily justified by differences in local equipment or local practices.
There is also little doubt that uniformity in election procedures is highly
desirable as a minimum, noncontroversial condition for procedural fairness.
Indeed, Florida Law charges the Secretary of State, as its chief election officer,
with the responsibility to “[o]btain and maintain uniformity in the application,
operation and interpretation of the election laws.” [8]

Even against this troublesome backdrop, the equal protection claim runs into
two serious challenges, one substantive and the other remedial. First, why does
the inconsistent administration of the Florida election laws amount to a violation
of the Equal Protection clause? Second, why, if such is the case, was it appropriate
or necessary to end the recount?

As to the first, there is an obvious gulf between the cases cited by the Supreme
Court majority and the unfortunate electoral situation as it developed in Florida.
Harper v Virginia Board of Elections [9] struck down a poll tax
of up to $1.50 on the ground that it amounted to an implicit discrimination
on account of wealth which bore no relation to voting qualifications proper. [10] To be sure, no one can
doubt that any individual who cannot pay the tax is excluded from the polls.
This free-form decision, which self-consciously sought to distance itself from
Lochner v New York, [11]
was itself something of a stretch under classical equal protection
law given that a poll tax is facially neutral and, unlike literacy tests, can
be applied in a mechanical way that eliminates the dangers of political discretion.
At root it looks as though Harper rests on the proposition that voting
rights are so fundamental that they cannot be abridged on account of wealth.
Be that as it may, Harper has scant relevance to the probity of Florida’s
recount procedures. It is one thing to find a serious affront to equal protection
from a wealth test that is uniform in its application but disparate in its impact.
It is quite another to find an equal protection violation in a process that
does not take into account wealth (or for that matter, race) in deciding
what counts as a valid vote. In a word, the Florida scheme is devoid of any
suspect classification needed to trigger the equal protection analysis.

Likewise, the per curiam citation to Reynolds v Sims [12] also runs far afield.
That case dealt with the refusal of state legislatures to reapportion themselves,
in ways that perpetuated massive differences in the size of legislative districts. [13] The obvious imbalance
is that all individuals who reside in populous counties systematically have
much less political influence than their peers who reside in less populous counties.
It is possible therefore to identify unambiguously the winners and losers from
the state practice, and to demand in principle at least some justification for
imbalances consciously perpetuated by the refusal of the dominant legislative
coalition to initiate electoral reforms that would necessarily cut into its
own power.

That situation bears scant resemblance to the Bush versus Gore dispute in which
all Florida voters, no matter where they lived, had equal say in the outcome
of the election. No one in Florida practiced a conscious manipulation of the
voting standard that necessarily skews the outcome in favor of one region, or
even one group. To see why, start with the simple but realistic assumption that
the election features only two candidates and that the winner is selected by
a simple majority vote, with one vote per person. Under these circumstances
it is sensible to treat the vote as though it were a share in some corporate
enterprise, which is run by the party that commands just over 50 percent of
the vote. On this view, Harper makes it impossible to exclude shareholders
who cannot pay some minimum voting fee. Reynolds in turn holds that one
share of stock cannot have ten votes while another share of stock only has one.

Bush v Gore, however, does not fall into either of these simple patterns
of electoral skewing for there is no conscious form of ex ante discrimination.
From the ex ante perspective no one can identify the determinate class of individuals
who benefit or are burdened from the choice of this or that standard for counting
ballots. It is not as though one standard was used for Gore voters and another
for Bush voters. It is thus no surprise that the per curiam opinion was unable
to explain why this asserted equal protection violation worked to Bush’s disadvantage.
Here the key feature of any equal protection challenge is that it takes no
position on the proper standard for counting votes. Rather, like any argument
from distributive justice, it merely argues that like cases (or votes)
should be treated alike, but remains agnostic on how any—indeed all—of
these cases (or votes) ought to be treated. [14] Hence, even if it were conceded that the disparities
in the recount processes between counties and within counties were indefensible,
the equal protection analysis only demands that these anomalies be eliminated.
But the equal protection critique offers no guidance as to how that should
be done.

Accordingly, the appropriate remedy (at least if time is no constraint) is
to remand the case to the Florida courts to decide which uniform standard should
apply. At this point, Gore’s prospects have to improve. The Florida Supreme
Court made painfully clear that it held that the clear intention of the voter
was the touchstone of Florida’s election law.
[15] It takes little imagination that, if it had been forced
to adopt a uniform standard for all punch-card ballots, the Florida Supreme
Court could leap to that standard that maximized the number of undervotes that
were included in the final tally. It was not just chance that Broward County
had produced 567 net Gore votes and Palm Beach County only around 200.
[16] No one could be certain that this change in the rules
of the game would have erased the slender Bush advantage, but it surely would
have been possible.

The equal protection analysis thus does nothing to halt the recount process.
What is needed is some anchor that locks the Florida Supreme Court into choosing
a more restrictive rule. That anchor was available in Palm Beach County where
the local rule stated: “A chad that is fully attached, bearing only an indentation,
should not be counted as a vote.”
[17] Indeed, there was no evidence that any other county
in Florida had ever departed from that understanding. This anchor has two advantages.
The first is that it offers a litmus test to determine what counts as a valid
vote: if the light shines through, then the vote can count; otherwise it does
not. The second is that the uniform past practice (especially in Palm Beach)
resonates with the powerful notion of fairness that holds that you cannot change
the rules after the race has been run.

This last concern probably accounts for the belated and undeveloped reference
to possible due process violations in the per curiam opinion.
[18] That maneuver runs into the potential doctrinal obstacle
that a “vote” as such, notwithstanding its enormous institutional importance,
may not rank as either “liberty” or “property” that is covered by the clause.
(There is no similar restriction in the Equal Protection clause, which governs
most voting cases.) Even the broad definitions of liberty and property do not
explicitly cover voting rights. [19] Yet on the other hand, so long as corporate shares,
complete with voting rights, count as property, then it may well make sense
to accept this broader reading here. Yet even this revised constitutional theory
calls for a remand to the Florida courts, albeit with somewhat different instructions.
Dimpled chads are out, and the Florida Supreme Court must run its recount under
more restricted rules. The per curiam U.S. Supreme Court did not pursue this
issue further, but it segues neatly into the Article II issue to which I shall
now turn.

II. What Did the Florida Legislature Direct?

To the best of my knowledge no case, prior to Bush v. Gore, had passed
on the proper interpretation of the Article II, Section 1, clause 2 requirement
that Florida shall “appoint” its presidential electors in the manner that the
Florida legislature shall direct.” [20] That question presumptively gives rise to many
interpretive difficulties that were not raised in this case. To mention just
two, it is not clear whether this provision requires that “the manner” for choosing
electors be settled before the election or whether it allows Florida to change
its mind after a popular election has been held but before the Electoral College
meets. It would, to say the least, be very disconcerting to know that the Republican
legislature could have voted to ignore the results of the popular vote if Gore
had carried the state by one million votes. And if it could not intervene in
that case, then could it intervene when the popular vote is much closer?

For our purposes, however, these difficulties can be mercifully skirted, because
the root of the sensible challenge to the decisions of the Florida Supreme Court
rests on the argument that the litigation phase of this election was not carried
out in accordance with the substantive or procedural provisions of Florida’s
election law. To make this argument successfully, it is necessary to surmount
some major pitfalls. Anyone who looks at this statute knows that it, like all
complex legislation, calls out for interpretation. Even though the responsibility
for interpretation is squarely given to the Secretary of State under the Act, [21] at some level, this task
falls into the province of the courts. It must therefore be shown, for there
to be a violation of Article II, Section 1, clause 2, that the state court’s
interpretation does not fall within the boundaries of acceptable interpretation,
but rather represents what must be termed, for want of a better term, as a gross
deviation from the scheme outlined in the statute. It should not be assumed,
however, that this standard means that gross deviations from the legislative
scheme can never be found so long as there are latent inconsistencies within
the statutory framework. The courts may decide whether or not magenta counts
as red, but they cannot do the same for green. Stated otherwise, the Florida
Supreme Court can choose either A or B when both are plausible
readings, but cannot choose C, which differs from both A and B,
simply because it cannot decide between A or B. The size of the
ambiguity limits the scope of judicial discretion.

Second, it does not appear that any gross deviation from the Florida statutory
scheme must be intentional. Article II, Section 1, clause 2 reads like a strict
liability provision. The Florida legislature directs the manner in which the
presidential electors are appointed, and all other actors within the Florida
system have to stay within the confines of that directive. The word “direct”
is a strong term whose sense is captured in the phrase “directed verdict,” which
refuses to let a jury stray beyond the area of permissible inferences. [22] It is not necessary that one allege or establish
systematic bad faith on the part of the Florida Supreme Court to make the charge
stick. It is only necessary to show that the gross deviation has in fact taken
place.

Third, this dispute is not governed by the usual rule that gives state courts
the last word on the interpretation of state law. That rule makes perfectly
good sense when the matter in question is one that states regulate by virtue
of their status as independent sovereigns within a federal system. But in this
case, the strong federal interest in the selection of the President of the United
States makes it appropriate for federal courts to see that all state actors
stay within the original constitutional scheme. Given judicial review, the United
States Supreme Court has the last word on whether any state has strayed from
its constitutional path in choosing its presidential electors. Surely, it would
raise a federal question if the Secretary of State decided, contrary to state
statutes, to ignore the state election returns in authorizing the slate of state
electors even if the state courts remained silent. If therefore the state courts
or state executive officials have failed properly to apply the state scheme,
resulting in a gross deviation from the legislature’s directives, then a federal
court can review the matter under Article II.

Fourth, resort to Article II eliminates all doubts over remedial fit that plague
the Court’s equal protection argument. Once it is determined that the Florida
Supreme Court has strayed from the legislative scheme, then the United States
Supreme Court has no obligation to remand the case for another round. Rather,
it becomes perfectly sensible to let the Secretary of State’s determination
stand since the Gore forces had not made any viable challenge to it.

With these preliminaries out of the way, it now becomes possible to identify
some of the key mistakes of the Florida Supreme Court that support the charge
that it created its own electoral scheme that substituted judicial authority
for that of the Secretary of State. As an overarching objective, the main mission
of the election law is to expand the franchise so that all eligible voters who
choose to exercise their rights have a reliable means to do so. But an election
code has to contend with grubby realities as well as lofty aspirations. Hence
it must reconcile the desire for inclusion with the twin interests of finality
and probity. Elections must be decided quickly enough so that the winners can
prepare to assume public office. And the rules governing elections must be tight
enough to prevent the use of fraudulent practices—before, during, and after
an election—that might alter an outcome of an election for the worst. The key
element in reading the Florida Election Code therefore is to see how these three
concerns work themselves out in connection with particular statutory provisions.
In this case it is instructive to look at three particular points. The first
of these concerns the definition of what counts as an “error in tabulation.” [23] The second concerns the dispute over the date
at which the local canvassing boards had to submit their tallies to the Secretary
of State. The third element concerns the relationship between the (initial)
protest phase of the proceedings and the (subsequent) contest phase. On each
of these points, the Florida Supreme Court turned the original electoral system,
as directed by the legislature, on its head.

A. Errors in Tabulation

The first question of note involves the conditions that must be satisfied in
order to have the hand recount that Gore requested. Here the basic statutory
provision states that if the manual recount indicates an “error in the vote
tabulation which could affect the outcome of the election, the county canvassing
board shall:

(a) Correct the error and recount the remaining precincts with the vote tabulation
system;

(b) Request the Department of State to verify the tabulation software; or

The entire recount procedure is thus predicated on a determination of an error
in vote tabulation. Unless that is shown, no hand recount is authorized at all.
In dealing with this issue, the administrative interpretation given to that
phrase was that an “error in the vote tabulation only means a counting error
resulting from incorrect election parameters or an error in the vote tabulating
software.” [25] The Florida Supreme Court
also recognized, in line with federal principles on this same subject, [26] that it was bound to follow
the interpretation that the Division of Elections (which the Secretary of State
followed) gave to this phrase unless it constituted clear error, which it promptly
found:

The plain language of section 102.166(5) refers to an error in the vote tabulation
rather than the vote tabulation system. On its face, the statute does not
include any words of limitation; rather, it provides a remedy for any type
of mistake made in tabulating ballots. The Legislature has utilized the phrase
“vote tabulation system” and “automatic tabulating equipment” in section 102.166
when it intended to refer to the voting system rather than the vote count.
Equating “vote tabulation” with “vote tabulation system” obliterates the distinction
created in section 102.166 by the Legislature.
[27]

This logic counts as pure sophistry, not plain meaning. The Florida Supreme
Court drew a vacuous distinction between a vote tabulation and a vote tabulation
system, without explaining why it matters in this case. At no point did it bother
to offer any account as to the meaning of the term “tabulation” as it appears
in both phrases. The clear sense of this term is captured in its dictionary
definitions, which refer to the organization of data in tables or other accessible
form. [28] That is exactly what the
Secretary of State claimed. Her view allowed corrections to the extent that
there were errors in addition and compilation; it also allowed correction to
the extent that the tabulation system operated defectively so as to generate
the wrong results. There is therefore perfectly good reason to use the phrase
“automatic tabulating equipment” in some portions of the statute but not in
others. But there is absolutely nothing in this provision that expands the word
“tabulating” so that the statute “provides a remedy for any type of mistake
made in tabulating ballots”—where the word tabulating no longer has its original
restrictive meaning, but now covers the separate issue of standards: What counts
as a valid vote?

The same point can be fortified when one looks at the three alternative remedies
that are allowed once the canvassing board finds an error in tabulation. The
first is that the errors that have been detected can be corrected. The remainder
of the precincts can then be counted with the vote tabulation system in place. [29] It seems quite clear that
the remedy in no way opens up the definitional question of what counts as a
valid vote because the recount relies on the same machine reading used in the
original counting process. The second remedy is again focused on how the mechanical
task of counting could have gone awry, for it allows the canvassing board to
ask the Department of State to verify the tabulation software. [30] This remedy does nothing whatsoever to change
the initial definition of what counts as a valid vote. Its sole purpose is to
debug the equipment used to tally votes.

All the action therefore swirls around the third option, which allows the canvassing
board, if it chooses, to manually recount all the ballots. [31] The conjunction that separates alternative (b)
from alternative (c) is “or,” and this suggests that the choice of remedies
lies within the sound discretion of the canvassing board, as the Florida Supreme
Court itself recognized.
[32] It defies comprehension, however, that the local canvassing
board should have the power to make or break any candidate simply its choice
among these three remedial options. The obvious structure of the entire provision
is that the three remedies are in pari materia. They are all directed
toward the same end—the correction of errors in tabulation that arise from either
human or machine error. That program can be implemented only if the definition
of a properly cast ballot does not vary with the method the canvassing board
chooses to rectify the error in tabulation. On this view, the sole function
of the hand recount is to examine ballots to see whether they meet the standards
for a ballot that is machine readable.

At this point, the functions of the hand recount should be limited to two kinds
of situations. The first is whether the chad has been so altered that it allows
the passage of light through the opening. This test does not count dimpled chads,
but counts partially hanging chads that have been displaced sufficiently to
allow the light to shine through—the implicit requirement in the 1990 Palm Beach
rule. [33] This test might have also
been stretched (as had never been the case in Florida) to count some dimples
on evidence of equipment malfunction that prevented the stylus from working—of
which it appears that there was none.
[34] A minimum condition for that approach is for the dimples
to appear in a consistent fashion across the face of the ballot in which few,
if any, of the chads are punched clear through. Under these circumstances, the
argument can be made that the equipment failed to register votes whose intention
can be discerned from the pattern of dimples that replicate the outcomes that
are found in ballots that have been cleanly punched. But, to repeat, this conclusion
is far from self-evident in the absence of some evidence of any system-wide
failure of the ballot equipment. It is therefore a close question as to whether
these “definite dimples in a coherent pattern” should count as errors in tabulation.

It is at this point that the distribution of powers between the Secretary of
State, with her statutory responsibility for “interpretation” of the election
law, [35] and the Florida Supreme
Court come into tension. Both the meaning of “tabulating” as well as the structure
of the statute’s remedial provisions wholly undermine the claim of the Florida
Supreme Court that “the plain meaning” of the statute is such to allow a hand
recount to take place under conditions in which dimples shall count, or at least
be “considered,” no matter what the condition of the voting machinery. The opposite
conclusion more accurately captures the sense of the law. It thus counts as
clear error to authorize the local canvassing boards to use a manual recount
to remedy an “error in vote tabulation” as a pretext for adopting a broader
definition of what counts as a valid vote. That decision belongs to the Secretary
of State in her oversight function, not to the local canvassing boards, and
not to the Florida courts.

The Florida Supreme Court sought to overcome the weight of the statutory language
by noting the importance of guarding against error:

Although error cannot be completely eliminated in any tabulation of the ballots,
our society has not yet gone so far as to place blind faith in machines. In
almost all endeavors, including elections, humans routinely correct the errors
of machines. For this very reason Florida law provides a human check on both
the malfunction of tabulation equipment and error in failing to accurately
count the ballots. [36]

But once again this represents a complete misapprehension of how voting laws,
and machines, work in Florida and elsewhere. The reason we have machine counts
is to guard against the risk of human error and bias. The Florida Court thus
wholly misstates the basic position by blithely assuming that it is possible
to correct one type of error without introducing a second kind of error. The
restricted types of review noted above constitute a sensible effort to take
both human and machine error into account, and to guard against the possibility
that zealous supporters of a given candidate or cause will invent votes where
none exist. [37] A litmus test is not an
impediment to justice but a bulwark against fraud. Watching election judges
with political connections search for scratch marks on ballots is a somber reminder
that both kinds of error exist.

This reticence to rely on dimples is, moreover, ironically supported by the
Illinois Supreme Court decision in Pullen v Mulligan, [38] which the Florida Supreme
Court cited to support its own expansive views. In Pullen the Illinois
Supreme Court wrote:

To invalidate a ballot which clearly reflects the voter’s intent, simply
because a machine cannot read it, would subordinate substance to form and
promote the means at the expense of the end.

The voters here did everything which the Election Code requires when they
punched the appropriate chad with the stylus. These voters should not be disfranchised
where their intent may be ascertained with reasonable certainty, simply because
the chad they punched did not completely dislodge from the ballot.
Such a failure may be attributable to the fault of the election authorities,
for failing to provide properly perforated paper, or it may be the result
of the voter’s disability or inadvertence. Whatever the reason, where the
intention of the voter can be fairly and satisfactorily ascertained, that
intention should be given effect.
[39]

As a subsequent story in the Chicago Tribune reports,
[40] this rhetoric did not cash out as a license for local
boards to use whatever standards they chose in running the hand count. Rather,
the hand count was done by shining lights through the ballot to see whether
a human eye could pick up a beam of light that the machine might have missed.
[41] Dimples, even definite dimples, were not counted, doubtless
because of the risk of fraud and abuse of discretion that such a nebulous standard
introduces. To my knowledge, there has never been an election in Florida in
which dimples were counted as votes, given the need for some objective verification
of the intention of a voter who can testify as to what he or she meant. On the
merits therefore the Secretary of State relied on a far sounder interpretation
of Florida law than did the Florida Supreme Court. If so, then the Florida Supreme
Court abused its discretion in overriding the interpretation on which she relied
with its own.

B. The Cutoff Date

The second bone of contention in the first Florida Supreme Court case was whether
the Secretary of State had discretion not to accept tallies from the various
counties more than a week after the election. As a matter of administrative
prudence, I think that it is clear that she made the wrong choice in cutting
off the recount so precipitously. What she should have done in my view was to
extend the period for the count while insisting on a standard of interpretation
that precluded the use of the dimples, which was well within her discretion.
But be that as it may, the question here is not whether she made the best possible
choice, but whether she acted within the limits of her delegated powers. On
this point the two key statutory provisions leave much to be desired. Section
102.111, which deals with the position of the Elections Canvassing Commission,
provides:

If the county returns are not received by the Department of State by 5 p.m.
of the seventh day following an election, all missing counties shall
be ignored, and the results shown by the returns on file shall be certified. [42]

Thereafter section 102.112 picks up the thread under the heading “Deadline
for submission of county returns to the Department of State; penalties.” It
provides:

If the returns are not received by the department by the time specified,
such returns may be ignored and the results on file at that time may
be certified by the department. [43]

As the italicized words make clear, no one can doubt the conflict between these
two sections. Section 102.111 is badly drafted because it seems to direct that
all returns shall, in other words, must, be ignored if they are submitted after
the seven-day period: nothing can be done to resurrect them. But if the returns
are a dead letter, then it makes no sense to say in the next section that the
Secretary of State may ignore them: for if she may ignore them, then she may
also take them into account. In addition, to read the “shall” in Section 102.111
to control the “may” in Section 102.112 renders otiose and superfluous the penalties
that the Secretary of State is empowered to impose on tardy local canvassing
officials.

It is therefore incumbent to make some adjustment in the statutory language
for the provisions to harmonize with each other. Truth be known that is not
difficult to do. All that is required is to read the “shall” language so that
it does not refer to the status of the late returns, but to the duty of the
canvassing boards. The provision works, as it were, in personam and not in rem.
The local canvassing officials are under a duty to submit the returns within
the week under section 102.111, but the Secretary of State has the power to
extend that deadline if she so chooses, under, of course, the usual abuse of
discretion standard that governs administrative officers generally. The upshot
is that the local boards have a week to conduct a recount—no questions asked.
But once they wish to go beyond that, then they must persuade the Secretary
of State, who oversees the state-wide process, to agree.

Unfortunately, at no point does the Florida Supreme Court acknowledge this
obvious way to break the impasse. Instead it trots out every conceivable canon
of statutory interpretation to

conclude that, consistent with the Florida election scheme, the Secretary
may reject a Board’s amended returns only if the returns are submitted so
late that their inclusion will preclude a candidate from contesting the certification
or preclude Florida’s voters from participating fully in the federal electoral
process. The Secretary in the present case has made no claim that either of
these conditions apply at this point in time.
[44]

This order has no textual base whatsoever and it bears no
relationship to either of the two sections that spawned the conflict in the
first place. Surely, the Florida Supreme Court could not have defended its reading
if Section 102.111 had been drafted to say, “The Canvassing Boards are under
a Duty to Submit Returns within one week after the election unless this obligation
is waived by the Secretary of State.” By going far afield, the Florida Supreme
Court invents its own standard that takes all the discretion away from the Secretary
of State and puts her in a position where she must accept hand recounts
completed after the statutory cut-off date so long as it remains possible to
raise a contest, which is itself an odd rule given the inherent uncertainty
over how long that contest might last. Yet even after this raw assumption of
power, the court went further, taking it upon itself to determine when the protest
phase of the electoral challenge is over. Here the Florida Supreme Court holds
that it “must invoke the equitable powers of this Court to fashion a remedy
that will allow a fair an expeditious resolution of the questions presented
here.”
[45] The bottom line was 5:00 PM on Sunday, November 26,
2000. But this assertion of “equitable jurisdiction” has no textual referent:
it looks like a fig leaf for judicial legislation, pure and simple.

In stressing this point, it is critical to note that “equitable jurisdiction”
is not some formless field that gives all courts an implicit license to do as
they please. [46] Traditionally, cases of
equitable jurisdiction have been defined by the remedy afforded: damages were
the province of the common law; specific performance, injunctions, foreclosure,
and the like were equitable remedies that historically set out the scope of
the Chancellor’s jurisdiction. There is no question that equitable remedies
could often be flexible; multiple parties were often involved, and remedies
that operated on a defendant had to take into account their interests. [47] But by the same token
equitable jurisdiction has never left courts with unchartered discretion to
do what they choose: rather, it was constrained by its own set of rules, and
I am aware of no general principle of equity that would allow a court to ride
roughshod over a particular time limitation contained in a statute in favor
of its own alternative date.
[48] This is not a case where a court of equity invokes a
principle of laches for an equitable cause of action in the absence of any specific
time limitation. Nor is it even a case in which statutes of limitations are
tolled to take into account specific disabilities of particular plaintiffs.

The reliance on equitable jurisdiction is a fig leaf, pure and simple, which
allowed the Florida Supreme Court to impose its will on a Secretary of State
who thought otherwise. The transfer of this power of discretion counts as arrogation
by the judicial branch of powers reserved to the executive branch by statute.
Had her decision been respected, the protest phase of this case would have ended
as of November 14, 2000, and, as will become clear, her orders would have been
immune from challenge. It makes good sense for the United States Supreme Court
to enforce the result as of that date as the outcome that the legislature, by
its articulation of general rules and its vesting of discretion in the Secretary
of State, had directed.

C. Protest versus Contest

The last feature of the Florida decisions that requires some comment concerns
the relationship between the protest and contest phases of an election dispute.
The protest phase, which has already been discussed, is directed toward the
selection of administrative remedies prior to the certification of the election
result by the Secretary of State. These remedies operate in much the same fashion
as the initial administrative conduct of the election. [49] The contest phase begins only after the protest
phase is over. Under Florida law the grounds for a contest after certification
cover, in addition to issues of fraud, bribery and eligibility, these two heads:

(c) Receipt of a number of illegal votes or rejection of a number of legal
votes sufficient to change or place in doubt the result of the election.

. . .

(e) Any other cause or allegation which, if sustained, would show that a
person other than the successful candidate was the person duly nominated or
elected to the office in question or that the outcome of the election on a
question submitted by referendum was contrary to the result declared by the
canvassing board or election board.
[50]

Once some violation of the statute has been found, the statute
provides:

(8) The circuit judge to whom the contest is presented may fashion such orders
as he or she deems necessary to ensure that each allegation in the complaint
is investigated, examined, or checked, to prevent or correct any alleged wrong,
and to provide any relief appropriate under such circumstances.
[51]

Two features about the contest phase deserve immediate attention. The first
is that one has contests about protests, so that the issues raised at the second
phase are efforts to overturn incorrect decisions at the protest phase. It makes
no sense to read the statute as though the contest phase is wholly unconnected
with anything that went on at the protest stage. If so, then there is no need
to bother to wait until the protest is over for the contest to begin. The second
key feature is that the statute contemplates a judicial trial, not administrative
action, at the contest phase. The minimum due process requirements of a trial
in turn make it imperative that each party have the chance to raise the issues
that it thinks appropriate, to present evidence to advance that contention,
and to rebut contentions and evidence presented by the other side. Any sensible
reading of the Florida statute seems to require that these elements be observed.
The broad power of the circuit judge to issue orders that “each allegation in
the complaint is investigated, examined, or checked, to prevent or correct any
alleged wrong,”
[52] surely means to give a broad scope to discovery in cases
of this sort. But these provisions do not do away with the other elements of
a trial, including the orderly presentation of evidence, under the usual rules
of admissibility and cross-examination, before the court for its decision.

The order issued by the Florida Supreme Court did nothing to respect either
of these key structural features about the relationship between these two phases
of an integrated process.. The threshold issue in its deliberation was to determine
the standard of review that should be used during the contest phase. The statute
itself is silent on the standard of review that the circuit court in an election
contest should apply to the administrative results of the protest phase. Yet
the Florida case law has read Florida law as calling for the abuse of discretion
standard that Judge Sauls had applied, most recently in its first foray into
this dispute. [53]

The internal logic of the Florida statute strongly confirms that this review
should be done, as is the case with other administrative actions, under an abuse
of discretion standard. After all, the initial statute gives the canvassing
board the initial choice over the method that it wishes to use to correct errors
in tabulation brought to light in the protest phase. Indeed in its first decision,
the Florida Supreme Court stressed the word “or” in the choice of remedies.
It seems odd in the extreme to reverse fields and now hold that the original
protest was little more than a preliminary canter, so that the disappointed
party can relitigate on demand in the contest phase all matters in the case
solely on the assertion that the undervote had not been properly counted.

Once it chose the de novo review standard, the Florida Supreme Court simply
took over the entire administration of the election challenge, trespassing on
the functions allocated to either the canvassing boards or the Secretary of
State. Thus the Florida Supreme Court took it upon itself to order a statewide
recount of the undervote (but not the overvote).
[54] Yet it nowhere explained where it received the power
to make (as an appellate court no less) an order that neither side had requested.
In support of its decision, it underscored the words “investigated, examined,
or checked,” and it acted as though the prior referent to the “each allegation
contained in the complaint” did not limit their scope. [55] Trials do not allow an
appellate court to set for itself the parameters of the initial complaint, and
neither Gore nor Bush asked for a state-wide recount. The Florida Supreme Court
made a unilateral decision to order a state-wide recount, which flies in the
face of the structure of the statute which conducts protests on a county-by-county
level only, and which leaves it to the parties to determine the scope of any
protest or contest that they might wish to raise if they are disappointed with
the outcome of the protest phase. It is hard to see how any remedy that goes
beyond the boundaries of the complaint could count as “appropriate” for a judicial
proceeding, even if the other requisites for a full-fledged contest had been
satisfied, which, as noted above, they were not.

In order to secure this result, the Florida Court did not give due weight to
the statutory words “rejection” and “legal.” It wrote:

that a legal vote is one in which there is a “clear indication of the intent
of the voter.” We next address whether the term “rejection” used in section
102.168(3)(c) includes instances where the County Canvassing Board has not
counted legal votes. Looking at the statutory scheme as a whole, it appears
that the term “rejected” does encompass votes that may exist but have not
been counted. [56]

This reading makes it appear as though voter failure is tantamount
to official misconduct. As Chief Justice of Rehnquist wrote, “Florida statutory
law cannot reasonably be thought to require the counting of improperly
marked ballots.” [57] If the Florida legislature
wanted to make the failure to ascertain the intention of the voter the standard
for triggering a contest, it could have done so in just those words. But what
it did do was to treat the exclusion of legally-cast ballots on a par with the
inclusion of illegal ballots (for example, prisoner votes). A more sensible
reading indicates that this provision is directed at local election officials
who rejected, that is refused to accept or to count, votes that were properly
cast. The image connoted is a blockade of legal voters from the polls. The paired
use of the terms “legal” and “illegal” is designed to catch cases of misconduct
of electoral officials, which is just not involved here. The section reads on
a par with the provisions that allow contests over the question of candidate
eligibility, fraud, and bribery.
[58] It does not invite any decision not to count those ballots
that do not meet the standards for validity that were set out in the election
procedures themselves and then communicated clearly to voters.

In sum, then, Chief Justice Rehnquist draws blood when he writes: “It is inconceivable
that what constitutes a vote that must be counted under the ‘error in the vote
tabulation’ language of the protest phase is different from what constitutes
a vote that must be counted under the ‘legal votes’ language of the contest
phase.” [59] The two sections cannot
be read to use standards that are in flat contradiction with each other. Nor
is the situation salvaged by appealing to section 102.168(e), for the cause
to be shown can only be the failure to adopt a broader definition of a countable
ballot than that applicable in the protest phase, which makes no more sense
here than it does with section 102.168(e). Unfortunately, the Florida Supreme
Court, once again, was happy to proceed simply on a showing that dimples were
not counted on ballots somewhere inside the state, wholly without any showing
of machine failure or electoral irregularity. [60]

This illicit expansion of the statutory grounds for a contest seems pretty
clear. What is worse is that the maneuver wholly precludes the articulation
of any coherent grounds to relate the protest to the contest provisions, even
though the statutory scheme contemplates that the contest should be to review
the protest stage, and commence within five days after it is finished. [61] But the difference matters. Given that an election
contest is a trial, the Florida Supreme Court cannot simply conclude without
a trial that the Broward County manual recount was correctly done. If it is
appropriate in a de novo proceeding (assuming that was allowed under the statute)
to count votes that have not been punched as required, then that de novo review
cannot be selectively invoked, but must apply to all phases of the case. It
is therefore wholly improper at the contest phase not to allow Bush to
move‑or indeed to raise the issue on its own motion—to exclude dimpled
ballots on the grounds that they manifested no clear intention at all. The dual
standard is not acceptable. The pro-Bush findings by the local canvassing boards
were subject to de novo review. The pro-Gore findings were treated as res judicata.

The utter lack of any sense of continuity between protest and contest was only
magnified by the Florida Supreme Court’s treatment of the Miami-Dade decision
not to continue the recount of the undervote when it decided that it could not
do so accurately before the November 26, 2000 deadline set by the Florida Supreme
Court. The entire thrust of the first Florida Supreme Court decision was to
hold that the discretion in the protest phase rested with the canvassing boards
even after the seven-day deadline of November 14, 2000 had past. But once this
Canvassing Board decided that it could not recount all the ballots (as Section
102.166(5)(c) required), then its discretion vanished in favor of an obligation
to recount all ballots even after the court-imposed November 26, 2000 deadline.
[62] That overlap in processes makes it quite clear that
what happens here is not an orderly progression between protest and contest,
where the grounds of the contest are necessarily more limited than choices available
in the protest stage. Rather, the entire statutory scheme is transmuted into
one long recount which in the end was entrusted to the trial judge of Leon County
who was asked to assemble personnel to continue the recount on a state-wide
level, thereby assuming all the functions vested by statute in the Secretary
of State. At this point, it seems clear that Chief Justice Rehnquist has it
exactly right when he writes of the various maneuvers of the Florida Supreme
Court:

Underlying the extension of the certification deadline and the shortchanging
of the contest period was, presumably, the clear implication that certification
was a matter of significance: The certified winner would enjoy presumptive
validity, making a contest proceeding by the losing candidate an uphill battle.
In its latest opinion, however, the court empties certification of virtually
all legal consequence during the contest, and in doing so departs from the
provisions enacted by the Florida legislature.
[63]

Conclusion

In sum, there is ample reason to believe, as the Rehnquist concurrence in Bush
v Gore urges, that the Florida Supreme Court adopted, under the guise of
interpretation, a scheme for conducting election challenges that deviates markedly
from that which the Florida legislature had set out in its statutes. I have
tried to indicate the multiple ways in which the Florida Court did violence
to the state statutory scheme. To many modern main-stream constitutional scholars
that conclusion might seem harsh because they find it hard to accept that that
weighty matters of constitutional interpretation do have right, and hence wrong,
answers that can be gathered from a close examination of text, structure, and
function. But accepting that view of pervasive skepticism disables them from
intelligent criticism of the United States Supreme Court. If, conceptually,
the Florida Supreme Court could not cross an imaginary line, then neither could
the United States Supreme Court. If constitutional law is politics by another
name, then it makes no more sense to condemn the United States Supreme Court
for its political predelictions than it is to condemn the Florida Supreme Court
for its. All is politics and in that world rank alone becomes the sole arbiter
of truth.

Effective criticism of the United States Supreme Court necessarily depends,
then, on a view of language that allows for us to recognize that legal interpretation
at any level could be wrong, indeed so wrong as to count as an abuse of its
discretion for partisan political ends. I think that charges of serious conceptual
error do have a lot of force in dealing with the equal protection argument that
five members of the United States Surpeme Court found decisive. But by the same
token, I hope that I have said enough to show that the alternative Article II
argument has far more traction in light of what I regard to be the manifest
errors in the Florida Supreme Court’s decisions. Quite simply, if the canvassing
boards and the Secretary of State did not abuse their discretion, then it seems
as though the Florida Supreme Court abused its. And if it abused its discretion,
then the United States Supreme Court did not abuse its.

Any Article II attack on the decision of the Florida Court would itself be
quite unintelligible if statutory text did not limit, and limit sharply, the
range of interpretive options open to a court. But so long as we can maintain
the conceptual line between interpretation and legislation, then we must recognize
that is always possible for any court, at any level, to stray over that line
so that its decrees can be regarded as judicial legislation. It is, to say the
least, a regrettable truth that the outcome of a Presidential election necessarily
turns on a question of degree, by asking just how wrong is wrong enough to topple
the decision of the Florida Supreme Court. But the peculiar determination to
override at various times the decisions of Florida’s canvassing boards, Secretary
of State, and circuit court judges crosses that line.

Thus this tortured case draws to a close. It is tragic that on matters of this
moment, no one can offer a mathematical demonstration of whether the mistakes
of the Florida Supreme Court were large enough to constitute a gross deviation
from the Florida statutory scheme, as I believe that they were. But even that
uncertainty should prompt the outspoken critics of the United States Supreme
Court to reign in their indignation a little bit. After all, in order to reach
that conclusion, one has to think that the United States Supreme Court committed
clear error in its decision. But owing to the sorry performance of the Florida
Supreme Court, that conclusion cannot be maintained, which I think is why the
United States Supreme Court’s decision was greeted generally with widespread
relief and not widespread protest. In the end it is regrettable, but true, that
the all-or-nothing choice of the President of the United States could rest on
what is in the end a question of degree, as so many vital questions are. Such
is the way of the world, and it will not do to rail against it.

†
James Parker Hall Distinguished Service Professor of Law, The
University of Chicago; Peter and Kristin Bedford Senior Fellow, The Hoover
Institution.

[2]
See, for example, Jeffrey Rosen, Disgrace, New Republic 18
(Dec 25, 2000) (arguing that the majority in Bush v Gore “have . .
. made it impossible for citizens of the United States to sustain any kind
of faith in the rule of law”).

[7]
See Don Van Natta, Jr. and David Barstow, Counting the Vote:
The Canvassing Boards: Election Officials Focus of Lobbying from Both Camps,
NY Times A1 (Nov 17, 2000) (reporting on pressure exerted on canvassing boards
during the recount fight).

[14]
For an early expression of this limited ideal, see Powell
v Pennsylvania, 127 US 678, 687 (1888) (ruling that state regulation of
oleomargarine did not violate equal protection as it subjected all in the
business to the same regulations).

While this Court has not attempted to define with exactness the liberty thus
guaranteed, the term has received much consideration and some of the included
things have been definitely stated. Without doubt, it denotes not merely freedom
from bodily restraint but also the right of the individual to contract, to
engage in any of the common occupations of life, to acquire useful knowledge,
to marry, establish a home and bring up children, to worship God according
to the dictates of his own conscience, and generally to enjoy those privileges
long recognized at common law as essential to the orderly pursuit of happiness
by free men.

Id at 399. Those privileges generally did not include
the right to vote. Likewise the right to vote has not been included in the
expanded list of property interests that have been protected under the Due
Process Clause. See, for example, Goldberg v Kelly, 397 US 254, 260–64
(1970) (using a definition of property rights expansive enough to include
the statutory right to welfare benefits).

[20]
This provision should be read in conjunction with Article I,
§ 4, cl 1: “The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the Legislature
thereof; but the Congress may at any time by Law make or alter such Regulations,
except as to the Places of chusing Senators.” The most obvious contrast is
that between “holding elections” and “appointing” electors. Does this preclude
the use of popular elections to “appoint” electoral slates for the Presidency?
Even if it does not, it seems that parallel concerns with federal judicial
oversight in particular elections would apply here if the manner in which
an election is held deviates substantially from the legislative plan.

[28]
See, for example, the definition offered in Merriam-Webster’s
Collegiate Dictionary 1199 (10th ed 1993) (“tabulate 1 : to put into tabular
form 2 : to count, record, or list systematically.” “tabular . . . 2 a : of,
relating to, or arranged in a table; specif: to set up in rows and
columns b : computed by means of a table.”)

[46]
For the general principle, see Albemarle Paper Co v Moody,
422 US 405, 416–17 (1975) (“That the court’s discretion is equitable in nature
hardly means that it is unfettered by meaningful standards or shielded from
thorough appellate review.”) (citations omitted).

[47]
For a general discussion, see F.W. Maitland, Equity: A Course
of Lectures (Cambridge 2d ed 1949) (revised by John Brunyate), in particular
Lectures 1 and 2 (discussing the history and nature of courts of equity, particularly
in England).

[48]
See, for example, Cope v Anderson, 331 US 461, 463–64
(1947) (noting that the same statute of limitations applies to legal and equitable
remedies for the same underlying wrong). For a more general discussion, see
Douglas Laycock, Modern American Remedies: Cases and Materials 931–34
(Little, Brown 2d ed 1994) (discussing interrelation between statutes of limitation
and laches).

Although section 102.168 grants the right of contest,
it does not change the discretionary aspect of the review procedures outlined
in section 102.166. The statute clearly leaves the decision whether or not
to hold a manual recount of the votes as a matter to be decided within the
discretion of the canvassing board.

[60]
This point is repeatedly stressed in the dissent of Wells, C.J.,
see Gore v Harris, 2000 Fla LEXIS 2373, *56–58 (Dec 8).

[61]
A party that wants to raise a contest must file a compliant
“within 5 days after midnight of the date the last county canvassing board
empowered to canvass the returns certifies the results of that particular
election following a protest pursuant to s. 102.166(1).” Fla Stat Ann § 102.168(2),
relied on in Gore v Harris, 2000 Fla LEXIS 2373 at *76 (Wells dissenting).

This is one of eleven essays in The Vote: Bush, Gore, and the Supreme Court published by the University of Chicago Press in October 2001. All eleven essays are available online if you buy the book now.

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